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The Perils of Conceptualism: A Response to Professor Fallon, 103 Harvard Law Review 1744 (1990)

Abstract

I am grateful for Professor Fallon's constructive and lucid remarks. They are thoughtful and perceptive. But they also reveal the limita-tions of the kind of highly conceptualist focus that has unfortunately come to characterize so much of our modern constitutional scholar-ship. Fallon argues that what I identify as the "paradox of public dis-course" can be dissolved if first amendment doctrine is conceived within the framework of Rawlsian liberalism. He contends that from the perspective of that liberalism, members of a particular community "can believe that behavior is outrageous and therefore reprehensible while simultaneously believing, as members of a national community, . . . that their own illiberal moral norms ought not to enjoy the sanction of law." "If this is so," Fallon concludes, "denying the sanction of law to . . . illiberal norms does not corrode the necessary foundation [of] liberal norms for critical public discourse to occur. There is, in short, no paradox." Fallon is, of course, quite correct that there is no logical inconsis-tency between the existence of community norms and the need for public toleration. But the limitations of this point become obvious as soon as it is seen that law does not exist merely on the conceptualist plane of logic and theory, but serves also as a practical instrument for the governanceo f society. The "paradoxo f public discourse"d oes not flow from the incompatibility of abstract ideas, but rather from the sociological tensions inherent in the dynamic functioning of the law.